Citation Nr: 1828980
Decision Date: 05/23/18 Archive Date: 06/05/18
DOCKET NO. 14-38 075A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for recurrent kidney stones.
2. Entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD).
3. Whether the reduction of the Veteran's 10 percent evaluation for right foot tinea pedis to 0 percent, effective April 1, 2011, was proper.
4. Whether the reduction of the Veteran's 10 percent evaluation for left foot tinea pedis to 0 percent, effective April 1, 2011, was proper.
5. Entitlement to service connection for sleep apnea.
6. Entitlement to service connection for migraine headaches, to include as secondary to a mechanical lumbar strain.
7. Entitlement to service connection for erectile dysfunction.
8. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to GERD and a mechanical lumbar strain.
9. Entitlement to service connection for hypertension.
10. Entitlement to service connection for sinusitis.
11. Entitlement to service connection for dizziness.
12. Entitlement to service connection for diarrhea, to include as secondary to GERD.
13. Entitlement to service connection for a right ankle disability.
14. Entitlement to service connection for a left ankle disability.
15. Entitlement to service connection for bilateral pes planus.
16. Entitlement to service connection for heart disease.
17. Entitlement to service connection for bronchitis.
18. Entitlement to service connection for rhinitis, claimed as allergies.
19. Entitlement to service connection for sleep disturbance.
20. Entitlement to service connection for memory loss.
21. Entitlement to service connection for diabetes, to include as due to radiation exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Scott Shoreman, Counsel
INTRODUCTION
The Veteran had active service from October 1978 to October 1998.
This matter comes before the Board of Veterans' Appeals (Board) from August 2008, March 2010, February 2011, June 2014, March 2015, and June 2015 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs).
Service connection for hypertension was denied in the August 2008 rating decision. The Veteran had relevant VA treatment within a year of the rating decision, which were constructively associated with the claims file. Therefore, the August 2008 rating decision is still under appeal. See 38 C.F.R. § 3.156(b) (2017).
In August 2017 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record.
The issue of entitlement to an evaluation in excess of 20 percent for a mechanical lumbar strain was raised at the August 2017 Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).
In February 2018 the Veteran requested that his claim be advanced on the docket due to financial hardship. The request was granted by the undersigned VLJ in April 2018. This appeal has accordingly been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).
The issues of entitlement to an increased evaluation for GERD and service connection for pes planus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In August 2017, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claim for an evaluation in excess of 10 percent for kidney stones be withdrawn.
2. In a March 2010 rating action that the Veteran was notified of in April 2010, the RO notified that Veteran of proposed reductions of the ratings for right and left tinea pedis, which had been evaluated separately as 10 percent disabling since June 2007.
3. In a February 2011 rating decision, the RO reduced the disability ratings for right and left tinea pedis to 0 percent, effective April 1, 2011.
4. At the time of the reduction, the 10 percent evaluations had been in effect since June 2007, which was less than five years.
5. The record does not demonstrate that there was sustained material improvement in the symptoms attributable to right and left tinea pedis.
6. Giving every reasonable doubt to the Veteran, his sleep apnea is related to service.
7. The Veteran's migraine headaches did not have their onset in service, are not otherwise the result of a disease or injury incurred in service, and were not caused or aggravated by the mechanical lumbar strain.
8. The Veteran's erectile dysfunction is proximately due to his hypertension.
9. The Veteran's bilateral shoulder disability did not have its onset in service, is not otherwise the result of a disease or injury incurred in service, was not incurred within a year of service, and was not caused or aggravated by GERD or the mechanical lumbar strain.
10. The Veteran's hypertension was manifest to a compensable degree within a year of service.
11. The Veteran's sinusitis did not have its onset in service and is not otherwise related to service.
12. The Veteran's dizziness did not have its onset in service and is not otherwise related to service.
13. The Veteran's diarrhea did not have its onset in service, is not otherwise the result of a disease or injury incurred in service, and was not caused or aggravated by GERD.
14. In August 2017, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claim for service connection for a right ankle disability be withdrawn.
15. In August 2017, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claim for service connection for a left ankle disability be withdrawn.
16. In August 2017, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claim for service connection for heart disease be withdrawn.
17. In August 2017, prior to the promulgation of a decision in the current appeal, the Veteran requested that his claim for service connection bronchitis be withdrawn.
18. The Veteran's rhinitis, claimed as allergies, did not have its onset in service and is not otherwise related to service.
19. The record does not reflect a sleep disturbance other than sleep apnea.
20. The record does not reflect memory loss.
21. The Veteran's diabetes mellitus did not have its onset in service, is not otherwise the result of a disease or injury incurred in service, and was not manifest within a year of service.
CONCLUSIONS OF LAW
1. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to an evaluation in excess of 10 percent for kidney stones have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).
2. The criteria for restoration of a 10 percent rating for right tinea pedis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.1, 4.2, 4.10, 4.118, Diagnostic Codes 7813-7806 (2017).
3. The criteria for restoration of a 10 percent rating for left tinea pedis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.1, 4.2, 4.10, 4.118, Diagnostic Codes 7813-7806 (2017).
4. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
5. The criteria for service connection for migraine headaches, to include a secondary to the mechanical lumbar strain, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
6. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
7. The criteria for service connection for a bilateral shoulder disability, to include as secondary to GERD and a mechanical lumbar strain, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
8. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
9. The criteria for service connection for sinusitis have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
10. The criteria for service connection for dizziness have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
11. The criteria for service connection for diarrhea, to include as secondary to GERD, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
12. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to service connection for a right ankle disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).
13. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to service connection for a left ankle disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).
14. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to service connection for heart disease have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).
15. The criteria for the withdrawal of the Substantive Appeal with respect to entitlement to service connection for bronchitis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017).
16. The criteria for service connection for rhinitis, claimed as allergies, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
17. The criteria for service connection for sleep disturbance have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
18. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
19. The criteria for service connection for diabetes mellitus, to include as due to radiation exposure, have not been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify has been met through letters to the Veteran. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.
There are specific particularized notice requirements that apply in case where the issue is a reduction in rating. These procedural safeguards afforded to the claimant are set forth under 38 C.F.R. § 3.105(e), are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105(e), initially, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will then be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.
The Board concludes that the procedural requirements for reduction have been satisfied in this case. Service connection for tinea pedis was granted in an October 2007 rating decision, and separate 10 percent ratings were assigned effective June 7, 2007. In May 2009 the Veteran filed a claim for increased ratings. In a March 2010 rating decision, the RO proposed a reduction of the 10 percent evaluations for this disability based on the findings of a September 2009 VA examination. The Veteran was notified of that proposal by a letter dated in April 2010, his right to request a hearing, and that his benefits would be reduced if he failed to submit additional evidence within 60 days. He submitted a statement and photographic evidence in April 2010 disagreeing with the reduction. In the February 2011 rating decision currently on appeal, the RO reduced the disability ratings to 0 percent, effective April 1, 2011, and notified the Veteran of the action in February 2011. As such, the proper procedures were followed.
With respect to the duty to assist in this case, the Veteran's service treatment records (STRs), Social Security records, private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran had VA examinations. Overall, the examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issue addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of this issue. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled.
II. Rating Reductions
Ten percent evaluations were in effect from June 7, 2007 through March 31, 2011 for right and left tinea pedis. The ratings were reduced to noncompensable (0 percent) as of April 1, 2011. The 10 percent ratings were in effect for less than five years. Therefore, various provisions of 38 C.F.R. § 3.344, pertaining to stabilization of disability ratings, do not apply, and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c) (2017). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran's condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13 (2017). The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10 (2017). Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421.
Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7 (2017).
In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
Diagnostic Code 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris).
Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118.
Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability.
Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling. Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118.
The Veteran had a VA examination in September 2008 at which it was noted that he had been treated with ketoconazole cream and Nystatin in the past 12 months for one to six weeks. They were noted to be topical treatments that are neither a corticosteroid or immunosuppressive. On examination, less than 5 percent of the total body area and 0 percent of exposed area were affected. There was flakey dry skin between all of the toes and no maceration. The examiner did not feel that there was any functional impairment due to tinea pedis, and there was no scarring or disfigurement. In August 2009 the Veteran wrote that his feet had gotten worse and that the cream he had been given was not working.
The Veteran had another VA examination in May 2010 at which he reported that his feet were flaky, scaly, disfigured, and painful due to tinea pedis. He used Nystatin powder on a daily basis, which the examiner wrote is topical and is neither a corticosteroid or immunosuppressive. Less than 5 percent to total body area and 0 percent of exposed area were affected. On examination there was maceration between the toes with peeling and dryness and mild peeling of the sides and plantar aspects of the feet. At May 2010 VA treatment there was maceration of the skin between the 4th and 5th toes bilaterally and peeling of the skin between the 3rd and 4th toes bilaterally. June 2011 treatment records note that the tinea pedis had not improved much despite the use of antifungal medications. Subsequent treatment records show ongoing use of antifungal medications.
Having considered the evidence of record, the Board finds that the record does not show that there was sustained improvement in the Veteran's tinea pedis. The findings at the May 2010 VA examination were similar to the September 2008 examination. Furthermore, the June 2011 VA treatment records state that there had not been much improvement, and subsequent treatment records show the ongoing need for antifungal medications. Accordingly, the separate 10 percent ratings for right and left tinea pedis are restored effective from April 1, 2011.
III. Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).
Service connection will also be presumed for certain chronic diseases, including arthritis, hypertension, and diabetes mellitus, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2017). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). In order for the presumption to apply, the claimant must be a veteran with 90 days of active, continuous service. 38 C.F.R. § 3.307(a)(1).
In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
A. Sleep Apnea
The STRs do not show complaints, diagnoses, or treatment records related to sleep apnea. There are numerous statements of record from the Veteran's ex-wife, relatives, and former roommates that saying that during his active service, the Veteran snored, had respiratory difficulty during sleep, and was tired due to lack of sleep. The Veteran was diagnosed with mild obstructive sleep apnea based on a June 2010 sleep study from VA treatment.
In August 2017, a private physician opined that the Veteran's sleep apnea was as most likely caused by or a result of service. She noted that other soldiers noticed the Veteran's snoring during service. That showed possible apnea while in service that was undiagnosed. Giving the benefit of the doubt to the Veteran, the Board finds that service connection for sleep apnea is warranted because he was symptomatic during service.
B. Migraine Headaches, Sinusitis, Dizziness, Diarrhea, and Rhinitis
The STRs show that the Veteran complained of dizziness and a headache at February 1990 treatment. The assessment was pharyngitis. In November 1993 the Veteran was noted to have diarrhea and was diagnosed with gastroenteritis.
The post-service records show that the Veteran complained of dizziness of two weeks' duration at May 1999 private treatment. At private treatment in July 1999 the Veteran complained of sinus congestion of four to five days and occasional headaches. The Veteran was diagnosed with chronic rhinitis, non-allergic. He complained of headaches and a sinus issue at November 2004 private treatment, and was diagnosed with sinusitis.
The Veteran had a VA examination in May 2010 at which he was diagnosed with chronic daily headaches. A more precise diagnosis could not be rendered because there was no objective data to support a more definitive diagnosis. The examiner felt that the condition should not preclude employment. However, the Veteran said that he was unable to do his job teaching JROTC because of headaches.
At March 2013 VA treatment the Veteran reported sinus issues since he was in the Army and that it was getting worse. It caused headaches and dizziness, and he noticed it a lot when walking in from being outside.
At an October 2013 examination for a Social Security claim, the Veteran reported migraine headaches that had been present for the past 35 years. The examiner diagnosed the Veteran with migraine headaches. An opinion was not provided on etiology.
The Veteran had a VA examination in June 2014 at which he said that his headaches caused dizziness. The dizziness had progressed since leaving the military. There was an incident in which he developed a headache with dizziness while driving to work and had to pull over. He no longer drove much because of dizziness. The Veteran said that he would get headaches with dizziness while teaching, and that he had not been diagnosed with any certain type of headaches since military service. The examiner opined that the Veteran's ear or peripheral vestibular condition did not impact the Veteran's ability to work. There was no evidence or diagnosis of vertigo, and the examiner noted that dizziness is a symptom and not a diagnosis.
The Veteran also had a VA sinus examination in June 2014. The examiner opined that the Veteran's sinusitis/rhinitis was less likely than not caused by or the result of active duty based on review of medical literature, medical records, and clinical experience. There was no chronic sinusitis/rhinitis complaint or treatment noted at the May 1998 retirement examination. It was noted that the Veteran was treated in July 1999 for sinus congestion and that there was no further complaints of or treatment for sinusitis until after the release from active duty. The Board notes that July 1999 was after the Veteran's active service.
The Veteran reported diarrhea for several years at a June 2014 VA examination. The examiner felt that there was no objective evidence of a workup or diagnosis of a chronic diarrhea condition. Therefore, an opinion was not rendered.
The Veteran later testified at the August 2017 Board hearing that his headaches started in service and had continued since then. He further testified that his dizziness, allergies, and sinusitis started early in service.
A private physician opined in August 2017 that the Veteran's diarrhea was not caused by or a result of the Veteran's military service. It was noted that the STRs do not reveal chronic gastrointestinal issues or diarrhea. The private physician opined that headaches and dizziness were at least as likely as not caused by or the result of service. No rationale was provided. The physician opined that sinusitis was at most likely caused by or a result of service because chronic sinus problems were noted in service in 1999. Significant probative value cannot be given to this opinion because 1999 was after the Veteran's active service.
While the Veteran has made statements to the effect that he has headaches, sinusitis, dizziness, diarrhea, and rhinitis that are related to service, he is not competent to make such a determination, because this is a medical question. His statements on etiology are therefore not afforded probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There are no competent and probative opinions of record that the Veteran's headaches, sinusitis, dizziness, diarrhea, and rhinitis are related to service. In regards to sinusitis and rhinitis, probative value is given to the June 2014 VA examiner's opinion because it was based on a review of the Veteran's history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.").
The record does not show that the Veteran has had a chronic condition related to these disabilities since service or that they are related to service. To the extent the Veteran is claiming having had chronic headaches, dizziness, or diarrhea since service, the Board does not find him to be a credible historian. More specifically, on the May 1998 medical history report, the Veteran indicated having not had frequent or severe headaches, dizziness or fainting spells, or stomach, liver, or intestinal issues. He reported frequent indigestion, and service connection is in effect for GERD. The record also does not show that the headaches were caused or aggravated by the lumbar mechanical strain or that or that diarrhea is caused or aggravated by GERD.
Because the evidence preponderates against the claim of service connection for migraine headaches, sinusitis, dizziness, diarrhea, and rhinitis, the benefit-of-the-doubt doctrine is inapplicable, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
C. Bilateral Shoulder Disability
The STRs show that in February 1980 the Veteran complained of bilateral shoulder pain with any heavy lifting. In August 2017 a private physician opined that the Veteran's shoulder pain was at least a likely as not caused by or a result of GERD. No rationale was provided. Therefore, probative value cannot be given to the opinion. See Nieves-Rodriguez, 22 Vet. App. at 304.
While the Veteran has made statements to the effect that he has a bilateral shoulder disability that is related to service, to include as secondary to GERD and a lumbar mechanical strain, he is not competent to make such a determination, because this is a medical question. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77. There are no competent opinions of record or indication from the record that the Veteran has a shoulder disability that is related to service, was incurred within a year of service, or that was caused or aggravated by GERD or the mechanical lumbar strain.
Because the evidence preponderates against the claim of service connection for a bilateral shoulder disability, to include as secondary to GERD and a mechanical lumbar strain, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.
D. Hypertension
The STRs show that the Veteran reported on a November 1977 medical history report that he had had high blood pressure on examination six months before. On the November 1977 enlistment examination blood pressure was 120/78 and there was no diagnosis of hypertension. At the June 1998 retirement examination blood pressure was 122/72.
At January 1999 private treatment the Veteran's blood pressure, which was 122/100 and 120/100, was noted to be borderline, after he complained of lightheadedness. He was not on medication. The Veteran was diagnosed with uncontrolled hypertension at February 1999 private treatment. The Veteran was prescribed Hytrin for blood pressure control. Blood pressure was 122/86 at May 1999 private treatment, and he was diagnosed with hypertension.
Private treatment records from November 2004 state that the Veteran had been prescribed medication for blood pressure earlier in the year but stopped taking it after two months. VA treatment records beginning in December 2006 show a diagnosis and treatment for hypertension.
Giving the benefit of the doubt to the Veteran, diastolic pressure was 100 or more and continuous medication was required for control within a year of service. Therefore, hypertension is presumed to be related to service because it was manifest to a compensable degree within a year of service. See 38 C.F.R. §§ 3.307, 3.309(a), 4.104, Diagnostic Code 7101 (2017). The claim of service connection for hypertension is therefore granted.
E. Erectile Dysfunction
Private treatment records show that the Veteran was diagnosed with erectile dysfunction in August 2000. The Veteran wrote in August 2009 that he had trouble with sexual activity due to erectile dysfunction. In September 2009 the Veteran wrote that erectile dysfunction was a result of his disabilities and medications. In October 2009 an examiner contracted through VA QTC Services opined that the Veteran's erectile dysfunction was less likely as not related to GERD, the lumbar spine strain, tinea pedis, bilateral patellofemoral pain syndrome, and recurrent kidney stones, including the medication that he took. The medical literature did not show a pathophysiologic mechanism for the above listed conditions to result in erectile dysfunction, and they were not risk factors for erectile dysfunction. While all medications can have side effects, the Veteran's medications were not generally associated with erectile dysfunction. It may be associated with several years of poorly controlled hypertension, which is not service-connected.
The present decision grants service connection for hypertension. The record shows that erectile dysfunction may be associated with the Veteran's hypertension. Therefore, giving the benefit of the doubt to the Veteran, service connection for erectile dysfunction is granted secondary to hypertension.
F. Sleep Disturbance and Memory Loss
The STRs show that on a May 1998 medical history report the Veteran reported frequent trouble sleeping and nervous trouble related to his job. The Veteran testified at the August 2017 Board hearing that he was diagnosed with memory loss during service. The treatment records do not show a sleep disturbance other than sleep apnea or memory loss. The record does not show that the Veteran has had a sleep disturbance separate from sleep apnea, for which service connection is granted herein.
While the Veteran is competent to report that he was diagnosed with memory loss during service, the STRs do not support this, and the Board does not find him credible. The Veteran indicated on the May 1998 medical history report that he had not had loss of memory or amnesia. He did not report memory loss at the October 2013 Social Security examination, and on examination he was oriented to time, place, and person.
To the extent the Veteran complains of sleep disturbance not related to sleep apnea and memory loss, they are not disabilities for VA purposes. A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Furthermore, the Veteran has not stated and the record does not show that sleep disturbance not related to sleep apnea and memory loss have caused functional limitation. Therefore, the claims for service connection for a sleep disturbance other than sleep apnea and memory loss must be denied because there is no diagnosed disability and no functional loss. See Saunders v. Wilkie, 2018 U.S. App. Lexis 8467.
H. Diabetes Mellitus
The Veteran is seeking service connection for diabetes mellitus based on radiation exposure while serving in Germany. Diabetes mellitus is not recognized as a radiogenic disease. See 38 C.F.R. §§ 3.307, 3.309, 3.311 (2017). Furthermore, there is no competent scientific or medical evidence of record that it is a radiogenic disease. Therefore, service connection cannot be granted based on radiation exposure, but will be considered on a direct basis.
The STRs do not show any complaints, treatment, or diagnosis related to diabetes. March 2013 VA treatment records state that diabetes was newly diagnosed. The Veteran had an examination in October 2013 for a Social Security claim at which he was diagnosed with diabetes mellitus. No opinion was provided on etiology. It was noted that it had been diagnosed in March 2013.
The private physician opined in August 2017 that the Veteran's diabetes was not caused by or the result of service. There were no records indicating elevated blood sugar in the STRs. Furthermore, the Veteran had gained weight, which can progress to diabetes mellitus.
While the Veteran has made statements to the effect that his diabetes mellitus is related to service, he is not competent to make such a determination, because this is a medical question. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77. There are no competent opinions of record or indication from the record that the Veteran's diabetes mellitus is related to service or was incurred within a year of service.
Because the evidence preponderates against the claim of service connection for diabetes mellitus, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.
IV. Increased Evaluation for Kidney Stones and Service Connection for Right and Left Ankle Disabilities, Heart Disease, and Bronchitis
The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.101 (2017). Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). At the August 2017 Board hearing, the Veteran withdraw the claims for entitlement to an increased evaluation for kidney stones and service connection for left and right ankle disabilities, heart disease, and bronchitis. This request has been reduced to writing through the transcript of the hearing. Thus, there are no allegations of error of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to consider an appeal in these matters.
ORDER
The claim of entitlement to an evaluation in excess of 10 percent for kidney stones dismissed.
A 10 percent rating for right tinea pedis is restored effective April 1, 2011.
A 10 percent rating for left tinea pedis is restored effective April 1, 2011.
Service connection for sleep apnea is granted.
Service connection for migraine headaches, to include as secondary to a mechanical lumbar strain, is denied.
Service connection for erectile dysfunction is granted.
Service connection for a bilateral shoulder disability, to include as secondary to GERD and a mechanical lumbar strain, is denied.
Service connection for hypertension is granted.
Service connection for sinusitis is denied.
Service connection for dizziness is denied.
Service connection for diarrhea is denied.
The claim of entitlement to service connection for a right ankle disability is dismissed.
The claim of entitlement to service connection for a left ankle disability is dismissed.
The claim of entitlement to service connection for heart disease is dismissed.
The claim of entitlement to service connection for bronchitis is dismissed.
Service connection for rhinitis, claimed as allergies, is denied.
Service connection for sleep disturbance is denied.
Service connection for memory loss is denied.
Service connection for diabetes mellitus is denied.
REMAND
The Veteran is seeking an evaluation in excess of 10 percent for GERD. The most recent VA examination was in September 2009. The Veteran subsequently testified at the August 2017 Board hearing that his GERD has worsened since the September 2009 examination. Therefore, the record shows that GERD may be worse than measured at the examination. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of this disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
The Veteran is seeking service connection for pes planus. Pes planus can be a congenital or an acquired condition, and service connection cannot be granted if it is a congenital condition. 38 C.F.R. §§ 4.9, 4.57 (2017). The STRs show that at the November 1977 enlistment exanimation the Veteran was noted to have flat feet. In November 1978 the Veteran was diagnosed with mild pes planus after complaining of foot pain. X-rays showed that the arches were somewhat flat.
In April 1980 the Veteran was given arch supports due to pes planus. The Veteran complained of flat feet in May 1980 that caused discomfort with prolonged standing. The Veteran continued to have complaints of painful feet. On a March 1984 medical history report the Veteran reported occasional problems with flat feet.
The Veteran had a VA examination in June 2014. The examiner opined that the Veteran's pes planus existed prior to service, and there was no objective evidence that it was aggravated beyond its natural course during service. Even if the Veteran had not been in the military, he would have experienced changes in the pre-existing pes planus due to aging, occupational factors, and daily activity. It was also noted that March 2013 x-rays showed that the pes planus was mild.
The examiner did not consider whether the pes planus is congenital or acquired. Furthermore, since pes planus was noted at entry to service, if the Veteran has acquired flat foot, service connection must be granted unless there is clear and unmistakable evidence that it did not increase in severity during service or that any increase was due to the natural progression of the disease or injury. See 38 U.S.C.A. §§ 1132 . Since the June 2014 VA examiner's opinion was inadequate, an addendum to the opinion must be obtained before the claim can be decided on the merits. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one).
VA treatment records to March 2016 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from
March 2016 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Obtain VA treatment records from March 2016 to the present.
2. Thereafter, schedule the Veteran for an appropriate VA examination to identify the nature, extent and severity of all manifestations of his GERD. The claims folder should be made available to and reviewed by the examiner, and all necessary tests should be performed.
3. Thereafter, obtain an addendum to the June 2014 VA foot examiner's opinion, or another qualified provider if the examiner is unavailable. The examiner should review the claims folder and indicate that such review occurred.
The examiner should opine as to whether the Veteran's bilateral pes planus is congenital or acquired.
If the bilateral pes planus is acquired, the examiner should indicate whether there is clear and unmistakable evidence that pes planus did not increase in severity during service.
If the bilateral pes planus is acquired, the examiner should also indicate whether there was clear and unmistakable evidence that any increase during service was due to the natural progression of the pes planus.
4. After completing the above actions, the Veteran's claims should be readjudicated. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response before the file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
______________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs